India’s judiciary has always been regarded as the protector of the Constitution, responsible for safeguarding fundamental rights, interpreting laws, and keeping the two arms of government, the executive and legislative, accountable to each other. The judiciary has played an instrumental role in the development of Indian democracy through its activism. There is, however, an emerging debate about whether the Indian judiciary is really losing power, not only theoretically but also practically.
Constitutionally, the judiciary is still a strong institution with significant power to review the constitutionality of laws. The real test of power, however, is not about having authority; it’s about using that authority effectively. The Indian judiciary has one major challenge, the overwhelming backlog of cases in the judicial system. There are almost four crore cases pending throughout the judicial system today, resulting in years of delay before victims receive justice. By the time judgement is issued, the practical consequences may be greatly reduced. In fact, justice delayed negates justification and diminishes the credibility and utility of the judicial system as a whole.
Increasing tension between judiciary & executive, mainly regarding the Appointments of Judges, is seen to be a major issue. The debate over the Collegium System is indicative of the power struggle between the two branches over the control and independence of the judicial branch. When a recommendation is not acted on or returned, it exerts a degree of indirect pressure on the judiciary. While such actions may not exhibit open conflict between the two branches, they do nonetheless alter the balance of power in the long run, which can impact how independent the judiciary is perceived.
Also, there are problematic aspects regarding the operation of the judiciary regarding politically sensitive cases, such as a delayed hearing of these important cases and when there is cautious or minimally intervention in deciding such cases, this can also give rise to a view that the judiciary is hesitant to act decisively when it is most important. Finally, even when a definitive ruling is rendered on an issue, the failure to implement the judgment can further limit the actual impact of that ruling in the real world.
There is also another aspect of this concern — that of acquiring justice. Although the legal process is continually regarded as expensive, slow, and cumbersome by virtually all citizens — particularly those who are less privileged than others. The lack of or difficulties experienced in gaining access or receiving a timely decision from the courts will ultimately make the judiciary a less effective protector of people’s rights in reality even though it will continue to be an effective protector of rights in theory.
These observations also indicate that a more important transformation is taking place with respect to the judiciary of India. While the judiciary has, manifestly, not been “weakened” or “dismantled,” the power of the judiciary is being progressively undercut through delayed responses, friction between the various sectors of the system, and inefficacy. The system remains operational, but its capacity to render timely and meaningful justice is under considerable challenge.
Contrary to previous beliefs, it would not be accurate to say that the judiciary has lost power; rather, it would be more accurate to say that it continues to play an important role in ensuring democracy and that it has asserted its independence on numerous occasions. Not a matter of the absence of power; but rather a matter of the gap between constitutional power and its effective application.
India is at a critical juncture in its history, and strengthening the judiciary will require clearing backlogs, streamlining the appointment process, improving existing infrastructure to meet the growing demand for access to justice, and ensuring independence while maintaining public trust in the judiciary.
The strength of the judiciary is not ultimately derived from its constitutional framework; rather, it is ultimately derived from the general public’s confidence in the system of justice. Democracy does not suffer when there are questions surrounding the (integrity of the) institution; rather, it is weakened when institutions evidence an inability to provide access to justice through effective delivery.